COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
DERRICK HUGH DEHANEY
MEMORANDUM OPINION *
v. Record No. 2910-01-4 PER CURIAM
MARCH 19, 2002
CITY OF WINCHESTER
DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John E. Wetsel, Jr., Judge
(James A. Drown; Larrick, Larrick and Drown,
P.C., on briefs), for appellant.
(Thomas R. Robinett, City Attorney, on
brief), for appellee.
Derrick Hugh Dehaney, appellant, appeals a decision of the
trial court terminating his residual parental rights to his son,
Derrick Dwayne Dehaney. Upon review of the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
Rule 5A:27.
BACKGROUND
On appeal, we review the evidence in
the light most favorable to the prevailing
party below . . . . Where the record
contains credible evidence in support of the
findings made by that court, we may not
retry the facts or substitute our view of
the facts for those of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App.
333, 336, 417 S.E.2d 1, 2 (1992).
Derrick Dwayne Dehaney, the child, was born on February 4,
1991 in Winchester, Virginia. Both appellant and the child's
mother are Jamaican citizens. On April 30, 1998, appellant was
convicted for a drug offense and was sentenced to 188 months
incarceration with a special condition of deportation to Jamaica
upon his release. Appellant is incarcerated in Petersburg,
Virginia, where he has been imprisoned since at least November
9, 1998. In 1996, the child's mother was deported to Jamaica,
where she still resides. Prior to his incarceration, appellant
raised the child.
The child first came to foster care on November 9, 1998,
and from that date until April 10, 2000, the Winchester
Department of Social Services (DSS) attempted to place the child
with a member of his immediate family. The mother and maternal
grandmother initially expressed interest in having the child
placed with them, but their interest faltered. Appellant
objected to the child being reunited with his mother.
After exhausting all family alternatives, on April 10,
2000, DSS filed a Foster Care Plan changing the goal of
"placement with relative" to adoption. The plan also indicated
that termination of each parent's residual parental rights was
in the best interests of the child.
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During the time period the child has been in the care and
custody of DSS, DSS has provided appellant with opportunities to
maintain telephone and mail contact with the child. The child's
foster care worker indicated he wrote several registered letters
to appellant attempting to arrange a face-to-face visit between
appellant and the child. However, he never received any
response from appellant. In addition, the trial court found
that appellant abused telephone and mail contact with the child
"so as to generate behavioral disturbances in the foster home."
The foster mother terminated the child's telephone contact with
appellant and screened appellant's mail through a social worker
to avoid difficulties with the child. DSS also provided
opportunities for appellant to participate in the design of
Foster Care Plans and the educational needs of the child, but
appellant has never responded to any overtures from DSS.
The trial court found that it is not in the best interests
of the child to maintain ongoing contact with appellant "due to
the unacceptable behavioral outbursts generated by such
contact." The trial court further found that,
given [appellant]'s refusal or inability to
participate in the design of Foster Care
Plans or to suggest a workable plan for his
son's care and custody, while retaining the
ability to object to any other workable
proposal, . . . [appellant] has failed to
plan for the child's future for a period of
more than six (6) months, and . . . he has
been unwilling or unable to substantially
correct or eliminate the conditions which
caused the child's placement and
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continuation in Foster Care for a period of
more than twelve (12) months.
In addition, the court found that the neglect suffered by
the child, given that neither parent is capable of providing him
with a home, presents a "serious and substantial threat to his
life, health and development." Furthermore, the trial court
stated, it is "not reasonably likely" that the conditions that
resulted in the neglect can be "substantially corrected or
eliminated so as to allow the child's safe return to [appellant]
within a reasonable period of time." Accordingly, the trial
court terminated appellant's residual parental rights.
ANALYSIS
Under Code § 16.1-283(B), the residual rights of a parent
of a child placed in foster care because of parental neglect or
abuse may be terminated only if the court finds by clear and
convincing evidence that (1) termination is in the best
interests of the child; (2) the neglect or abuse suffered by the
child presented a serious and substantial threat to the child's
life, health, or development; and (3) it is not reasonably
likely that the conditions which resulted in the neglect or
abuse can be substantially corrected or eliminated to allow the
child's safe return to his parent within a reasonable period of
time.
Code § 16.1-283(C)(2) provides that a court may terminate a
parent's residual parental rights where a child has been placed
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in foster care if the court finds, based upon clear and
convincing evidence, that (1) it is in the best interests of the
child; (2) that the parents without good cause have been
unwilling or unable within a reasonable period of time not to
exceed twelve months to remedy substantially the conditions
which led to the child's foster care placement; and (3) that
reasonable and appropriate efforts of social, medical, mental
health or other rehabilitative agencies have been made to such
end.
Appellant argues that, other than his incarceration, DSS
failed to present any credible evidence that past or future
contact with the child was or will be detrimental to the child's
best interests.
[W]hile long-term incarceration does not,
per se, authorize termination of parental
rights or negate . . . D[SS]'s obligation to
provide services, it is a valid and proper
circumstance which, when combined with other
evidence concerning the parent/child
relationship, can support a court's finding
by clear and convincing evidence that the
best interests of the child will be served
by termination.
Id. at 340, 417 S.E.2d at 5.
The child has been in foster care for more than three
years. "It is clearly not in the best interests of a child to
spend a lengthy period of time waiting to find out when, or even
if, a parent will be capable of resuming his responsibilities."
Kaywood v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535,
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540, 394 S.E.2d 492, 495 (1990). Moreover, the child will be
almost twenty years old when appellant is released from prison
and deported to Jamaica. In addition, the child's foster mother
testified that although appellant contacted the child
infrequently, when the child received mail from appellant or had
telephone contact with appellant, he "[got] very agitated" and
would have "outbursts." She stated that after having contact
with appellant, the child had kicked a hole in a wall, jumped
from a second story window, and had problems in school, such as
fighting, threatening teachers, and running away. Appellant
also discouraged the child from having contact with his mother.
The foster mother indicated that since appellant's contact with
the child has been limited, the child's behavior has been "a
whole lot better" and he has had only a few outbursts.
Furthermore, the foster mother has heard the child talk about
his father only in terms of the fights appellant had
participated in and the card games he played. The child is now
an "A" student in school, but he is in a "special class" because
of his behavioral issues.
The evidence in this case supports the trial court's
findings. It is apparent that appellant is unable to care for a
young child and is unable to remedy within a reasonable time the
conditions which led to his child's placement in foster care.
Thus, we cannot say that the trial court's finding by clear and
convincing evidence that the conditions of Code § 16.1-283 have
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been established was plainly wrong or without evidence to
support it. Accordingly, we affirm the trial court's decision.
Affirmed.
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